New Help for Child Care Center Permitting in NJ

NJDEP LogoThe NJDEP announced today the launch of an updated website for child care and educational facilities to clear up confusion on the environmental compliance requirements for sites subject to the “Madden Legislation”  P.L. 2007, Chapter 1. The site provides useful links and guidance to assist you with navigating through this multi-agency regulatory process.

In our experience, REPSG recommends that a new applicant allow up to three (3) months to address the environmental compliance steps. The first step is to hire a licensed site remediation professional (LSRP) to prepare a Preliminary Assessment Report (PAR). If a prior Phase I Environmental Site Assessment is available this is helpful, but it does not replace the PAR. The LSRP will review the site history and identify potential on-site and off-site sources of contamination and advise you through the next steps in the process. The selection of a qualified LSRP with specific child care permitting experience is vital to the success of the project.

If you are about to embark on your child care center new application, three year renewal or are constructing an educational facility please contact me at cdrake@repsg.com so that I can assist you with your process. Grants are available through the HSDRF. Ask me how!

The Brownfields Utilization, Investment, and Local Development or “BUILD” Act

BUILDlogo_FINAL_crop The Brownfields Utilization, Investment, and Local Development or “BUILD” Act (2013) is a bill recently introduced in the US Senate that would make federal brownfields cleanup grants available to a wider variety of groups and local governments, and would smooth the way for communities to redevelop these properties. These grants are a critical part of the success of the nation’s Brownfields program. According to EPA figures Brownfields grants have resulted in the assessment of more than 20,000 properties and the completion of 845 cleanups.

The bill was introduced by Senators Lautenberg, Inhofe, Crapo and Udall  to amend the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. §9601 et seq. (“CERCLA”), which has been the main US law governing federal cleanups since the 1970s. The BUILD Act reauthorizes the EPA’s Brownfields Program through Fiscal Year 2016. The BUILD Act is more than a simple reauthorization bill, however, as it contains important new eligibility and increased funding provisions that have the potential to both revive Brownfields projects that were tabled due to the economy and encourage new redevelopment projects. While currently non-profit organizations are only eligible for site remediation grants, the Act broadens the definition of an “eligible entity” under CERCLA to include non-profit organizations, certain limited liability corporations, limited partnerships and “qualified community development entities” among those that can obtain site assessment grants.

Some of the other important features of the BUILD Act include:

  • Local governments benefit from expanded opportunities to obtain site assessment grants to allow them to investigate properties that were acquired prior to the enactment of the Small Business Liability Relief and Brownfields Revitalization Act in 2002. The site assessment grants are available to local governments even if they do not qualify for the “bona fide prospective purchaser exemption” under CERCLA (i.e. they did not undertake a level of due diligence amounting to “all appropriate inquiry” before buying the site).
  • Under the Act, states benefit through targeted funding. The EPA is authorized under the BUILD Act to award up to $2,000,000 to provide grants to states. The caveat is that states must have spent at least 50% of the previous year’s funding on site assessment and remediation to qualify.
  • Increases in the amounts and allowable uses for funding are key elements of the proposed legislation. Under the current law, site remediation grants cannot exceed $200,000 per site. The BUILD Act would increase that cap to $500,000 per site and give the EPA further authority to waive the limit and award up to $650,000.
  • Grant recipients would have greater flexibility under the BUILD Act in terms of the costs that can be reimbursed though the grant program. Currently, CERCLA prohibits grant recipients from using grant proceeds to pay for administrative costs. If enacted, the BUILD Act would remove this prohibition and permit grant recipients to use up to 8% of any grant for administrative costs.
  • The BUILD Act would create multipurpose Brownfields grants of up to $950,000 that could be used to fund inventory, characterization, assessment, planning or remediation work at one or more sites in an area, provided that the grant money is used within a three-year period. At present, the grants are segmented in such a way that multiple grants may be needed in order to complete an entire project. Allowing applicants to apply for one grant to cover multiple phases of a project is be expected to save grant recipients money by reducing the administrative application costs and the delays and uncertainty associated with piecemeal grants.
  • The Act incents Brownfields redevelopment at particular types of sites through focused funding. It directs EPA to give priority in awarding technical assistance grants to “small communities, Indian tribes, rural areas, or low-income areas with a population of not more than 15,000” individuals. The EPA will also be required under the BUILD Act to give consideration to “waterfront brownfield sites” when awarding funds. A “waterfront brownfield site” is a site that is located adjacent to a body of water or a federally designated floodplain. Special grants up to $500,000 are available for clean energy projects, which include renewable energy (wind, solar and geothermal) projects at Brownfields sites.

Want to know more? A convenient section by section summary presented by Smart Growth America is available here.

As participants in successful brownfields redevelopments in Pennsylvania, New Jersey, and Delaware over the last twenty-five years, REPSG stays on top of funding opportunities, grants and legislation pertaining to your development. Please do not hesitate to contact me at Cdrake@repsg.com, or post in the comments below, to discuss your project and see how we can help.

Do New Vapor Rules in NJ Affect Your Project?

NJDEP LogoToday, January 17, 2013: NJDEP published major changes to guidance and standards pertaining to Vapor Intrusion. Vapor Intrusion is defined as the migration of volatile chemicals from the subsurface into overlying buildings through subsurface soils or preferential pathways (such as underground utilities). This pathway has been the driver for many off-site investigations, public notifications and costly indoor air testing since the NJDEP’s initial guidance came out in 2007.

Just released on the NJDEP’s Vapor Intrusion web page is the revised Vapor Intrusion Technical Guidance document and updates to the 2007 Vapor Intrusion Screening Levels (VISL). Finally, the web page also features Johnson & Ettinger (J&E) Model spreadsheets that were updated to reflect toxicity changes in the new VISL.

Here are just some of the changes:
Naphthalene and 2-methylnaphthalene have been added to the VISL tables. At this time, the laboratory capacity to analyze naphthalene and 2-methylnaphthalene using the preferred USEPA Method TO-17 is limited (only one certified laboratory). Therefore, the Department will not require the collection and analysis of naphthalene and 2-methylnaphthalene until July 16, 2013.

A factor of 10 has been incorporated into the calculation of the health-based ground water screening values for additional petroleum related contaminants (not reflected in the March 2007 tables) to account for degradation of the contaminants in the unsaturated zone. The additional petroleum related contaminants include: 1, 3-butadiene; cyclohexane; n-hexane; 2-methylnaphthalene; naphthalene; and styrene.

Five contaminants have been eliminated from the VISL tables due to the absence of inhalation toxicity information. These chemicals include: 1, 3-dichlorobenzene; 1, 2- dichloroethene (cis); 1, 2- dichloroethene (total); 2-chlorotoluene; and tertiary butyl alcohol (TBA).

Changes to many previously regulated compounds, including increases in groundwater screening levels for tetrachloroethylene (aka PCE) (up to 31 ug/l from a prior standard of 1 ug/l) and trichloroethylene (TCE) (up to 2 ug/l from a prior standard of 1 ug/l) for example, were also made.

Consult your LSRP regarding how these changes affect your project, or feel free to contact REPSG directly at info@repsg.com.

Stop Chasing Contamination: DEP Implements Compliance Averaging Guidance

NJDEP SRP LogoOn September 24, 2012 the NJDEP finalized the Technical Guidance for the Attainment of Remediation Standards and Site-Specific Criteria. The new Guidance provides helpful information for applying appropriate remediation criteria and determining compliance. However, the standout piece of information is that compliance averaging, like the use of 95 percent upper confidence limit of the mean (95 UCL) and 75%/10x, can now apply to Sites in New Jersey. These compliance options have been accepted by the PADEP for years, and REPSG has applied these statistical strategies at many Sites in Pennsylvania.

HOW DOES THIS IMPACT YOUR NEW JERSEY REMEDIATION?

75%/10x is a useful statistical analysis strategy for remediation involving point-source impacts, like underground storage tanks or small spills. As long as the specified number of samples is collected and the analytical results of 75% of those samples are compliant with the remediation standard, the soils under investigation are in compliance. This approach can eliminate the need to chase low-level contamination that can sometimes persist after the removal of a heating oil tank; for example, in the case of benzo(a)pyrene and number 4 fuel oil.

95 UCL is another helpful statistical analysis strategy that can now be utilized at Sites in NJ. This method identifies uniform contamination and estimates the average concentration at the 95 UCL. If the average concentration is below the remediation standard, the associated soils are compliant; even some samples within the dataset have concentrations above the remediation standard.

Do you think that compliance averaging could help speed up remediation at your Site? REPSG can apply our statistical experience to your New Jersey projects. Leave a comment below or please feel free to contact me at jcutright@repsg.com.

UPDATE: NJDEP Remedial Priority Scoring

We have another update on our previous post on the NJDEP’s Remedial Priority Scoring System.  The NJDEP has, again, extended the deadline for submission of data on the RPS Feedback Form. The new submission deadline is September 30, 2012. This provides Persons Responsible for Conducting Remediation and associated LSRPs with more time to update Site information that could impact the RPS score.

If you have any questions, feel free to post them in the comments section below or email me at jcutright@repsg.com.

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Original Update: 7/19/12

NJDEP LogoWe have an update on our previous post on the NJDEP’s Remedial Priority Scoring System.  The NJDEP has extended the deadline for submission of data on the RPS Feedback Form to August 31, 2012. This provides more time to update the X and Y Site coordinates, extent areas for soil and groundwater, pathway information, and missing or rejected Electronic Data Deliverables (EDDs).

If you have any questions, feel free to post them in the comments section below or email me at jcutright@repsg.com.

 

A Primer to NJ’s EPH Categories

Approved methods of compound analysis change all the time, and so do their associated regulations. While it is always advisable to read and become fully familiar with the most up to date versions of regulations that are available, sometimes what you need is a primer to help get you started. And that’s what this post is all about.

Previously in New Jersey, petroleum hydrocarbons were analyzed by the total petroleum hydrocarbon (TPH) analysis method 418.1, however, over time this method was systematically replaced through a series of evolving methods designed to address extractable petroleum hydrocarbons (EPH). The method eventually settled on, and which is now in place, is known as ‘NJDEP EPH Method Revision 3.’

Protocol for implementation of the EPH Method Revision 3 divides petroleum types into two categories. Category 1 deals with releases of diesel fuel and/or number 2 (No. 2) fuel oil, while category 2 deals with releases of petroleum hydrocarbon mixtures other than diesel fuel/No. 2 fuel oil such as: cutting oils, crude oils, hydraulic oils, lubricating oils, number 4 and number 6 fuel oils, and waste oils. Category 1 requires analysis of non-fractionated EPH only while category 2 utilizes analysis of both non-fractionated and fractioned EPH analysis.

One thing to keep in mind when analyzing for EPH is that, regardless of the category, contingent analysis of specific compounds may be required based on your EPH results. EPH concentrations that trigger contingent analysis are determined by Table 2-1 of the Technical Requirements for Site Remediation Guidance (known as the ‘Tech Rule’ or ‘N.J.A.C. 7:26E’). Contingent analysis triggers and parameters vary based on petroleum type, so make sure to package your samples accordingly!

The concentration of EPH present within a sample that warrants soil remediation is 5,100 ppm for category 1, residential exposure. This is referred to as the human health value. Soils with concentrations above 5,100 ppm must be treated or removed. Alternatively, engineering controls (like an asphalt cap) and institutional controls (like a deed notice) can be used to mitigate exposure. A concentration of 54,000 ppm is the human health value for category 1 non-residential exposure scenarios. A determination of the presence of EPH product is made for both the category 1 residential exposure scenario and the non-residential exposure scenario when the concentration of EPH reaches 8,000 ppm. Soils with EPH concentrations above 8,000 ppm must be removed.

The Department requires that an ecological evaluation be conducted when the concentration of non-fractionated EPH reaches 1,700 ppm. However, if you’re a homeowner, or if the site being evaluated doesn’t have any significant ecological receptors, you’re in luck! The NJDEP typically doesn’t require that an ecological evaluation be conducted in those instances.

For category 2, the 1,700 ppm ecological evaluation trigger can also serve as the trigger to analyze for fractionated analysis. Initially, non-fractionated EPH analysis is sufficient; however, concentrations over 1,700 require fractionated EPH data. Due to analysis turnaround times with labs, you may find it prudent to simply analyze category 2 soils for both non-fractionated and fractionated EPH at the same time. The human health value for category 2 can be calculated using the NJDEP’s EPH calculator spreadsheet. Simply input fractionated data and whether the scenario is residential or non-residential and the spreadsheet will indicate if additional remediation is necessary. A determination of the presence of EPH product for category 2 samples is made when the concentration of EPH reaches 17,000 ppm. As with category 1, soils with concentrations of EPH above 17,000 require removal while soils with concentrations below 17,000 that are calculated to be above the human health value may be treated, removed, or addressed with a combination of engineering and institutional controls.

For both category 1 and category 2 EPH analysis, the evaluation of sheen is determined utilizing the Department’s Sheen Remediation Guidance.

Now that you have the basics of the NJDEP’s EPH protocol down, please download (and read!) the complete NJDEP EPH Protocol Guidance document to learn more. Or if you have any questions, feel free to contact me at sshourds@repsg.com, or leave a comment in the reply section below. Happy sampling!

NJ Annual Fees in the Simplest Terms

NJDEP LogoThe New Jersey Department of Environmental Protection (NJDEP) has replaced the past “hour-by-hour” oversight billing with a Site Remediation LSRP Annual Fee. This offers some advantages in terms of project budget planning, since the fees are fixed and predictable after you wade through confusing nuances. Your  Licensed Site Remediation Professional (LSRP) will guide you. If you have not retained a LSRP for your existing case, you need one.

The Way This Works
Your LSRP calculates your project’s annual fees for you and submits this information to the NJDEP in an Annual Fee Form. The cost of the fee is based on the number of contaminated areas of concern that have not been fully remediated as defined in N.J.A.C. 7:26E “NJ Tech Rule” last amended May 2012.

The annual fees must continue to be paid until all areas of concern have received a Response Action Outcome (similar to a No Further Action). Deadlines and other details regarding the fees are found in the Administrative Requirements for Remediation of Contaminated Sites Rule “ARRCS Rule”. The fee breakdown is as follows:

  • 0-1 Contaminated Areas of Concern $450.00
  • 2-10 Contaminated Areas of Concern $900.00
  • 11-20 Contaminated Areas of Concern $5,000.00
  • >20 Contaminated Areas of Concern $9,500.00

In addition to these amounts there are additional “contaminated media” fees of $1,400 (each) assessed if groundwater, sediment or surface water is impacted.  The Department estimates that most sites fall in Category 2. If no Annual Fee Form has been submitted, you will probably get a Site Remediation LSRP Annual Fee invoice for $900.00. Special considerations for underground storage tank sites apply, consult your LSRP.

This is not the sum total of your NJDEP fees, however. You are still responsible for past due oversight fees, fees related to remediation permits, and NJDEP direct oversight fees, if applicable. A handy link to check your project for past due fees is found here: Financial Obligation Summary Report. If your project’s closure strategy involves use of an engineering control (like a cap) or institutional control (like a Classification Exception Area (CEA)) you will continue to have ongoing fees.

Proper calculation and timely payment of fees is based on a good Preliminary Site Assessment and Site Investigation. If you receive a  Site Remediation LSRP Annual Fee  invoice from the NJDEP, forward it to your LSRP for review prior to paying it and don’t ignore notices. The NJDEP has the ability to assess fines and fees for non-compliance. Please feel free to contact me at cdrake@repsg.com with LSRP questions or leave a comment below.

 

Reviewing the ASTM Phase I ESA Standard

ASTM LogoThe American Society for Testing and Materials (ASTM) is a standards organization headquartered right outside of Philadelphia in Conshohocken, PA. ASTM publishes technical standards for a range of products, materials, and services. REPSG conducts our famous Phase I Environmental Site Assessments (ESAs) in accordance with the ASTM Phase I Standard entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” This standard is commonly referenced as E 1527.

ASTM E 1527 was last revised in 2005, when the United State Environmental Protection Agency (USEPA) released the ‘All Appropriate Inquiries Rule’. According to the ASTM by laws, standards must be updated at least every eight years, and beginning last fall, an ASTM Task Group has been meeting to once again review the text of E 1527. Revisions to the standard have been proposed that would strengthen and clarify the requirements of E 1527.

Some of the key proposed updates to E 1527 were highlighted by Environmental Data Resources (EDR). Three of the proposed revisions include:

  • Introduction of the term “Controlled Recognized Environmental Condition.” Past soil and/or groundwater contamination which had been remediated would be classified as a CREC. This designation will be addition to recognized environmental conditions (RECs) and historical recognized environmental conditions (hRECs).
  • Expanded discussion on how vapor encroachment should be addressed in a Phase I ESA. In the new E 1527 draft, a vapor plume is proposed to be treated as any other source of contamination. (ASTM published a vapor encroachment standard in 2010 entitled “Standard Guide for Vapor Encroachment on Property Involved in Real Estate Transactions” E 2600-10. Stay tuned for upcoming blog posts about vapor!)
  • Clarification about when regulatory file reviews need to be completed during the course of a Phase I ESA.

The ASTM Task Group is anticipated to publish the updated E 1527 in 2013, but the standard will have to be approved by the USEPA.

As E 1527 evolves, REPSG will continue to provide the most current, highest quality reporting to its clients. If you have any questions about what these updates will mean for you and your property, drop us a line! Each of us on the Phase I team have copies of E 1527 and E 2600 within arms’ reach (and no, I’m not kidding!)

NJDEP Remedial Priority Scoring

NJDEP Remedial Priority Scoring System – What You Need to Know.

You might be reading this post because you just received a letter from the New Jersey Department of Environmental Protection (NJDEP) letting you know that you have been identified as the responsible person for conducting a remediation and that the NJDEP will be ranking your project using the Remedial Priority Scoring (RPS) System. This is not a cause for alarm and you are not alone. This system will be used to rankNew Jersey’s approximately 12,000 sites and the scores will be made public via the NJDEP’s website. Buyers, lenders and insurers can be expected to review a property’s score before proceeding with a transaction. As a result, the accuracy of a property’s score is of paramount importance.

What is New Jersey’s new Remedial Priority Scoring (RPS) System?

RPS is a computerized model that is designed to help the NJDEP categorize contaminated sites based on potential risk to public health, safety or the environment. Once the RPS Score is determined it is catalogued for relative ranking with sites with similar scores and placed into Categories 1 through 5. Category 1 represents the lowest score and thus the least potential risk through Category 5 which represents the highest score and thus the greatest potential risk. It should be noted that the information used by NJDEP will be derived solely from electronic databases maintained by NJDEP, based on reviews of already received letters, this creates the potential for erroneous assessments as these databases may not contain the most accurate and current information. Steps should be taken to make sure your site has the correct score.

What Should You Do If You Have Received a Letter from NJDEP on your Remedial Priority Ranking?

If you have received a letter from the NJDEP regarding your ranking it is important that you work quickly with your LSRP to make sure the information is accurate. You have until August 10, 2012 to utilize an online feedback loop in order to have your ranking recalculated.

If you have not already retained an LSRP for your Site or are unfamiliar with the LSRP program, a Licensed Site Remediation Professional (LSRP) is now required to be retained to insure that remediation is being conducted according to NJDEP requirements. An LSRP is licensed by the State ofNew Jerseyand is required to adhere to strict guidelines to insure that remediation is completed with environmental, ecological and human receptors in mind. Once retained, in addition to insuring an adequate and efficient remediation from start to finish, an LSRP can provide detailed reviews of remediation that has already begun before moving it forward to completion. It is in this capacity that an LSRP can be tremendously useful in identifying errors in the RPS score.

Have you received a letter from NJDEP on your Remedial Priority Ranking? What’s been your experience been with the process? I would love to hear from you. If you have further questions about how to handle this process, feel free to post them in the comments section below or email me at jcutright@repsg.com.

NJ Appeals Court Rules NJDEP Acted Beyond Their Powers under ISRA and SRRA

A New Jersey state appeals court ruling issued Friday, July 6, 2012 said the New Jersey Department of Environmental Protection (NJDEP) does not always have the authority to require owners or operators of industrial sites to certify the land is “clean” before it is sold and redeveloped. Since the passage of the Environmental Cleanup Responsibility Act (ECRA) in 1983, the NJDEP has required property owners to remediate contamination before the land could be sold, transferred or the industrial facility operating at the site could be closed. Many laws have been issued in the past decades to define and revise this cleanup process, including the Industrial Site Remediation Act (ISRA) of 1993 and, most recently, the Site Remediation Reform Act (SRRA) of 2009.

According to the ruling by the three-judge panel of the Superior court of New Jersey, The NJDEP went too far when officials informed Des Champs Laboratories Inc. that in order to sell their Livingston, NJ property, the company had to certify that, to the best of the owners’ knowledge, contamination on the property had fallen below a certain level. The NJDEP was enforcing a provision of NJAC 7:26B 5.9, most recently amended by the NJDEP in May of 2012.

The court’s decision stated that:

 “We conclude that the department, despite its important regulatory role and its expertise over environmental matters, acted in the present context beyond its legislatively delegated powers,”

The three-judge appellate panel also said that no action can be taken on the sites for 30 days, giving time for a potential appeal to the state Supreme Court.

The case centered on the NJDEP’s rejection of Des Champs’ request for a ‘de minimis’ quantity exemption from ISRA’s requirement for site investigation. The court ruled that the state cannot require a landowner to investigate soil and groundwater conditions at a property when the landowner has affirmed that only insignificant (‘de minimus’) amounts of hazardous materials were historically used at the site.  However, the court was clear that the ruling was not intended to limit the NJDEP’s authority to enforce other environmental statutes, most notably the Spill Act. The NJDEP has not announced whether or not they intend to appeal the ruling.

REPSG will continue to follow this story and the response of the legal community to this ruling. Look for follow up posts. Please feel free to post your comments and responses here. Any confidential questions regarding ISRA compliance, SRRA or the recent May 2012 amendments or issues on your projects can be directed to blog@repsg.com and one of our qualified professionals will respond quickly.